Allahabad High Court
Ram Chandra vs U.P. State Through Collector, Hardoi ... on 19 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 976
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment reserved on 14.01.2020 Judgment delivered on 19.05.2020 Case :- CEILING No. - 12 of 2002 Petitioner :- Ram Chandra Respondent :- U.P. State Through Collector, Hardoi And Others Counsel for Petitioner:-P.K. Khare,Radha Kant Sinha,Ram Das Gupta Counsel for Respondent :- C.S.C.,Ajay Pratap Singh 'Vatsa' Hon'ble Mrs. Sangeeta Chandra,J.
1. This Writ Petition has been filed by the petitioner Ram Chandra son of Kamta Prasad challenging the order dated 13th March, 2001 passed by the Prescribed Authority Ceiling/Additional Collector, Hardoi, hereinafter referred to as respondent No.3, and the order dated 29.12.2001 passed by the Additional Commissioner (Judicial), Lucknow Division, Lucknow, hereinafter referred to respondent No.2 rejecting the Appeal of the petitioner.
2. By means of the order impugned 0.675 hectares of land in Plot No.385 in Village Magrapur, Pargana Pandarwa, Tehsil Shahabad, District Hardoi, has been declared surplus under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act.)
3. It has been submitted that notice was received by the petitioner along with Prescribed Form 3A, B, & C, to which he submitted his objections on 12.12.2000. He stated clearly that on 08.06.1973, the petitioner was not the tenure holder of Plot number is 121, 275, 393, 295, 265, and 385 in Village Mangrapur. His father Kamta Prasad along with his two brothers Prabhu Dayal and Jagannath Prasad Sons of Devi Prasad, were the tenure holders with 1/3rd share each in the aforesaid six plots. Jagannath Prasad died issueless in November 1973 and Prabhu Dayal died issueless in January 1975. After the death of his two brothers the father of the petitioner Kamta Prasad became the tenure holder of the aforesaid six plots of land. Plot Nos.192 and 316 in Village Baddapur had been purchased by the petitioner out of his own resources. On 08.06.1973, his father was the tenure holder along with his brothers. If on 08.06.1973 Kamta Prasad his father is treated as a unit, then the petitioner being his adult son was entitled to 2 hectares of land additionally. At the time of the death of his father in 1979, there were six family members in the petitioners' family and the number of family members being more than five, the petitioner was entitled to be given at least 2 hectares of land additionally. Moreover, he had one adult son Shyam Srivastava living with him who was entitled to 2 hectares land additionally.
4. On the basis of the objection raised by the petitioner, the Prescribed Authority framed five issues/points for determination. They were as follows:- (1) Whether on 08.06.1973 the petitioner's father Kamta Prasad was the tenure holder of the property in question and the petitioner being his adult son was entitled to additional 2 hectares of land? (2) Whether at the time of the death of the petitioner's father there were six members in the petitioners' family and the effect thereof? (3.) Whether at the time of issuance of notice to the petitioner there were seven members in the petitioner's family and to what effect? (4) Whether looking into the number of members of the family the petitioner was entitled to hold 9.30 hectares of irrigated land? (5), Whether the petitioner Ram Chandra son of Kamta Prasad, has a total of 8.546 hectares of land which can be treated to be 7.968 hectares of irrigated land which is beyond the permissible limit by 0.675 hectares?
5. The State Government opposed the petitioner's objections and produced copies of Ceiling Prescribed Form Nos.1, 1A, 2, 3, 3A, 3B, 3C, 4, & 5, along with CH Form-41 and extracts of the Khatauni of Khata Nos.123 and 183 in Village Mangrapur and extract of Khatauni of Khata No. 86 of Village Baddapur relating to 1407 to 1412 Fasli and 1405 to 1410 Fasli respectively. Moreover the Area Lekhpal and the Kanungo were also examined on oath.
6. The petitioner on the other hand, produced copies of High School Certificates of his three daughters Kumari Poonam Srivastava, Kumari Neelam Srivastava and Kumari Shalini Srivastava respectively as well as the High School pass Certificates of his three sons, Shyam Srivastava, Gaurav Srivastava and Saurabh Srivastava. The petitioner also produced copies of Khatauni of the three Khatas in question of Village Mangrapur and Baddapur of the year 1382 to 1388 Fasli. Moreover, the petitioner in his statement on oath before the Prescribed Authority clearly stated that the entries made in Prescribed Form CLH5 by the Lekhpal and Kanoongo were incorrect.
7. The Prescribed Authority taking into account documentary and oral evidence decided Issues Nos.1, 2 and 3 collectively, as they were related to each other and came to a conclusion that in 1407 to 1412 Fasli in Khata No.123, the name of petitioner Ram Chandra son of Kamta Prasad had been mentioned as Bhumidhar with transferable rights over 8.121 hectares of land. The duration of cultivation had been mentioned as since before 1373 Fasli. Similarly, for Khata number 183, the petitioner's name had been mentioned as Bhumidhar with transferable rights over 0.873 hectares of land. For Village Baddapur in Khata No.86, the name of the petitioner has been mentioned on 0.316 Hectares as Bhumidhar. Hence, a total of 8.546 hectares of land in all the three Khata of the two villages concerned have been recorded as holding of the petitioner which inirrigated terms came to 7.968 hectares of land.
8. The Prescribed Authority thereafter determined the number of members of the petitioner's family on the basis of evidence submitted by the petitioner and finding that the petitioner had not submitted the extract of the Family Register of the village concerned, it disbelieved the High School Certificates and came to the conclusion that the petitioner had only five members in his family. With regard to the objection raised by the petitioner that at the time of his father's death in 1979 alone the petitioner became Bhumidhar of the six plots of land which were otherwise held by the father of the petitioner along with his two brothers as co-tenure holders, the date of death of the petitioner's father was disbelieved on the ground that no Death Certificate had been produced by the petitioner. Moreover, in the Revenue Records of 1407 to 1412 Fasli the name of the petitioner had been mentioned as Bhumidhar and the duration of cultivatory possession had been mentioned as since before 1373 Fasli. Since the petitioner did not produce a copy of the Family Register of the village concerned it could not be said that the petitioner's family had more than five members and therefore, he was not held to be entitled to additional 2 hectares of land. The Prescribed Authority thereafter, affirmed the report of the Lekhpal and Kanungo regarding the petitioner possessing land in excess of permissible limit and declared 0.675 hectares of land in Plot No.385 in Village Magrapur as surplus land.
9. Aggrieved by the order passed by the Prescribed Authority, the petitioner filed an appeal Under section 13 of the Act, registered as Appeal No.5 of 2000-2001. The petitioner in his Appeal again raised the ground that on the appointed date i.e. on 8th June 1973, the petitioner was not the recorded tenure holder of six plots of land mentioned in Village Magrapur. His father Kamta Prasad along with Jagannath Prasad and Prabhu Dayal sons of Devi Prasad were the recorded tenure holder of the six plots of land. Copies of the Khatauni of 1373 Fasli and 1382 Fasli and 1384 Fasli of both villages were also submitted as evidence. The petitioner again produced copies of High School pass Certificates of his six children and claimed that one of his sons Shyam Srivastava, was an adult at the time of issuance of notice, and thus the petitioner was entitled to 2 hectares of land additionally.
10. Having considered the arguments raised by the counsel for the petitioner and the State, the Appellate Authority found that no doubt on 8th June 1973, the petitioner was not recorded as Bhumidhar of all plots of land as mentioned in the notice but as per the provisions of Section 29 of the Act, even if the property of the father of the petitioner and his uncles devolved upon the petitioner in 1979, or thereafter, and his total land exceeded the permissible limits, such excess land could be declared as surplus.
11. With regard to the number of family members of the petitioner the Appellate Authority came to the conclusion that a copy of the Parivar Register not having been filed, even if the Date of Birth of the petitioner's son Shyam Srivastava as mentioned in his High School Certificate is accepted to be 14th August 1978, on the appointed date i.e. on 8th June 1973, none of his children had been born, and, for the purpose of determination of number of family members, this date being crucial, it was held that the petitioners' family on the appointed date, consisted of only two members i.e. he himself and his wife and the petitioner was not entitled to additional 2 hectares of land.
12. The petitioner in his writ petition has filed copies of High School pass Certificates of all his six children i.e. three sons and three daughters and has also filed a copy of a certificate issued by the Treasury Officer, Hardoi, showing that the petitioner's father Kamta Prasad who was a Government servant had died on 14.8.1979
13. It has been submitted by the learned counsel for the petitioner that for the purpose of determination of family member, the date of issuance of notice i. e. 02.11.2000, would be relevant and for the purpose of determination of surplus land the relevant date would be 08.06.1973.
14. It has been submitted that since on the relevant date the name of the petitioner was not recorded as Bhumidhar of the six plots of land as shown in the order impugned, which plots of land devolved upon the petitioner only on the death of his Father in August 1979, it could not be said that he had any surplus land. It has been submitted that section 29 of the Act would not be applicable in the case of the petitioner as on 08.06.1973 the landholding of the petitioner's father cannot be included in the petitioner's land and the said land devolved upon the petitioner through succession only on 14.8.1979.
15. It has been submitted that the Prescribed Authority did not consider the Khatauni of 1373 to 1384 Fasli which was crucial for the purpose of determination of holding of the petitioner on the relevant date.
16. It has been submitted that in case the High School pass Certificates of the petitioners' children was not accepted by the Appellate Authority he should have remanded the matter to the Prescribed Authority for determination of Date of Birth of his children to come to a correct conclusion with regard to the number of members of the family.
17. It has further been submitted on the basis of supplementary affidavit filed by the petitioner that in the oral examination the Area Lekhpal, One Bishan Pal, had accepted that on 8th June 1973, the petitioner was not recorded as Bhumidhar and he did not have any surplus land.
18. It appears that on the first day of hearing of this writ petition as fresh, the Court directed that affidavits be exchanged between the parties and in the meantime the petitioner should not be dispossessed from the land in dispute.
19. A counter affidavit was filed along with a Stay Vacation application by the state respondents on 30th January 2003. In the counter affidavit filed by the Tehsildar (Judicial), on behalf of the State respondents, it has been stated that the writ petition has been filed on misconceived grounds. On the date of determination of surplus land, the petitioner possessed more than the permissible limit. Moreover the cultivatory possession of 8.121 hectares of land situated in Village Magrapur and 0.316 hectares of land in Village Baddapur was with the petitioner since prior to 1373 Fasli. Copies of the extracts of Khatauni of both villages have been filed as Annexure CA-1 & CA-2, by the State-respondents and it has been submitted that CLH3A rightly records 7.968 hectares of land in irrigated terms in the name of the petitioner, and CH3B rightly records that 0.675 hectares of land has been proposed to be declared as surplus. In paragraph 7 of the Counter affidavit, it has been stated clearly that after the order passed by the Prescribed Authority the possession of the land was taken and it was allotted to eligible persons in accordance with the provisions contained in Section 27(3) of the Act.
20. In the Rejoinder Affidavit filed by the petitioner, the facts as mentioned in the writ petition have been reiterated and copies of relevant Khasra and Khatauni for the year 1373 F, 1382 F,1384 and 1388 Fasli for the two villages concerned have been filed collectively as Annexures to show that the land in question was not recorded in the name of the petitioner in 1373 Fasli. In reply to paragraph 7 of the Counter Affidavit the Rejoinder Affidavit states in Paragraph-7 that an illegal allotment of surplus land in question had been made to other persons when the dispute was pending before this Court and an interim order had already been passed on 27th February 2002, not to dispossess the petitioner from the land in dispute. In pursuance of the interim order the petitioner is still in possession, though in the Revenue Records the Authorities have mentioned allotment of land in favour of other persons. It has been submitted that at least four children of the petitioner were born before 1979 i.e. before the death of his father, his three daughters were born in 1969, 1973, and 1977 respectively and his son Shyam Srivastava was born in 1978. Later on his fourth daughter was born in 1980 and his two sons thereafter, in 1984 and 1986 respectively, and the High School Pass Certificates of all six children were produced before the Prescribed Authority which were ignored by him arbitrarily.
21. It appears from the perusal of the order sheet that the writ petition was dismissed for want of prosecution and interim order discharged by this Court on 1st July 2013 and on an application for restoration being filed on 10.07.2013 the same was allowed subject to payment of cost of Rs.500/- as contribution to the Bar Association''s Library. Such payment was not made by the petitioner and another application was filed thereafter praying for further time to be given. The Application No.55843 of 2014, was allowed on 02.09.2014 giving 10 days time to the petitioner to deposit cost. The petitioner thereafter deposited cost and the writ petition was actually restored on 5th September 2014. The petitioner in the meantime had been dispossessed and on this fact being brought to the notice of this Court, the Court summoned the Tehsildar concerned and restored the possession of the petitioner on the land in dispute.
22. An Application No.11749 of 2014 was filed by Shri Krishna son of Buddha, and Chhannulal son of Shyamlal, both residents of Village Mangrapur alleging that they had been allotted 0.337 hectares each of surplus land of Plot No.385 on 27th March 2001 and had also been delivered possession date in April 2001. Copies of relevant Khasra and Khatauni of the land in dispute were filed as Annexure to the said application and a prayer was made that the Applicants be impleaded as Respondents and the petitioners having obtained the interim order through concealment of fact, the same be vacated. This Court rejected the application on 28.11.2014.
23. A second Application for impleadment was filed by the same applicants with the same averments which was again rejected on 14.01.2020.
24. In a Supplementary Affidavit filed by the petitioner in October 2015, the petitioner again brought on record the copies of Khatauni of the two villages concerned and Plot numbers for the year 1375-1377F, 1382-1388F, and copies of oral statements of Lekhpal and Kanoongo made before the Prescribed Authority that on 08.06.1973, the petitioner was not recorded as tenure holder over the six plots in village Mangrapur.
25. It has been argued by the learned counsel for the petitioner that the Commissioner Lucknow Division in Appeal proceeded on the wrong premise that even if the land of other tenure holders devolved upon the petitioner only in the year 1979, after the death of his father, and that the petitioner was not the tenure holder of all the land on 08.06.1973, Section 29 of the Act provided that if the tenure holder acquired land by succession such land would still be amenable to the provisions of section 5 of the Act. When the original ceiling proceedings were initiated against the petitioner the relevant date under the Act was 08.06.1973 for determining the ceiling area and at that time the petitioner was recorded tenure holder of only two plots of land that is Plot Nos.192 and 316, and his father and his two uncles were independent tenure holder of the rest of the land. The Prescribed Authority could not invoke the Provisions of Section 29 of the Act which are meant only for a redetermination. Section 29 along with section 30 provides that a Prescribed Authority shall proceed for a determination of land acquired by tenure holder through succession, transfer or by court's order, and on issuing notice to the tenure holder surplus land shall be determined in accordance with the provisions of the Act as prescribed under section 10.
26. It has further been argued that the number of family members of the petitioner on the date of determination ought to have been considered by the Prescribed Authority and on 14th August 1979, the petitioner and his wife and four children together constituted six family members which was thus more than five as prescribed under the Act for the petitioner to be given benefit of two additional hectares of land.
27. Some of the provisions contained in U.P. Imposition of Ceiling on Land Holdings Act, 1960, are relevant to be noted.
Under section 3 (9) of the Act a "holding" is defined as land or lands held by a person as Bhumihar, Sirdar, or Asami of Gaon Sabha or Asami as mentioned in section 11 of the U.P.Z.A. & L.R. Act, or as a tenant under the U.P. Tenancy Act, other than as a subtenant or as a Govt. Lessee.
Under section 5 of the Act, "on and from the commencement" of the Amendment Act of 1972, no tenure holder shall be entitled to hold in the aggregate throughout the State of U.P. any land in excess of the ceiling area as applicable to him. In Explanation-1 to the section, it has been clarified that in determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account Section 3 (17) of the Act, a tenure holder is defined as a person" Who is the holder of a holding "except a woman whose husband is a tenure holder or a minor child whose father or mother is a tenure holder.
28. Section 29 and 30 of the Act are as follows :- "...."
"29. Subsequent declaration of further land as surplus land. - Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972,-..............
(a) one land has come to be held by a tenure-holder under a decree or order of any Court, or as a result of succession or transfer, or i by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him; or
(b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under this Act ceases to fall under any of the categories exempted], the ceiling area shall be liable to be redetermined [and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply].
30. Determination of surplus land regarding future acquisition. - (1) Where any land has become liable to be treated as surplus land [* * *] under Section 29, the tenure-holder shall, within such period as may be prescribed submit, a statement to the Prescribed Authority in the form and in the manner laid down under Section 9 indicating in the statement the plot or plots which he would like to retain as a part of his ceiling area.
(2) (a) Where the statement submitted under sub-section (1) is accepted by the Prescribed Authority, it shall proceed to determine the surplus land accordingly.
(b) Where a tenure-holder fails to submit a statement required to be submitted under sub-section (1) or submits an incomplete or incorrect statement, the Prescribed Authority shall proceed in the manner laid down under Section 10.
(c) The provisions of this Act in respect of declaration, acquisition, disposal and settlement of surplus land, shall, mutatis mutandis, apply to surplus land covered by this section."
The Act as amended came into force on 8th June 1973. As per the scheme of the act, in determining the ceiling area of a person, this date is relevant and no tenure holder shall be entitled to hold in the aggregate, land in excess of the ceiling area prescribed under the Act.
Under section 3 (17) of the Act, a tenure holder is defined as a person" Who is the holder of a holding "except a woman whose husband is a tenure holder or a minor child whose father or mother is a tenure holder.
29. Under section 29 of the Act, a provision has been made for the determination of ceiling area in case there is any future acquisition by that tenure holder. The future acquisition can be in different forms and section 29 of the Act further provides that if any land has come to be held by a tenure holder pursuant to a decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, the tenure holder has to file a further declaration if the aggregate land held by him exceeds the ceiling area applicable to him. So also, if there is any change in the character of the land, such as, if any un-irrigated land becomes irrigated land, then he has to file a fresh declaration as it would affect his aggregate ceiling area prescribed under the law. The Act envisages that no tenure holder folder shall be allowed to be in possession of land in excess of the ceiling area at any point of time after coming into force of the amendment Act. If there is any further acquisition, inclusive of that acquisition, the total area shall not exceed the ceiling area as applicable to him.
30. In State of U.P. Versus District Judge reported in 1997 (1) SCC 496, the Supreme Court was dealing with the case where a person had executed an agreement for sale of certain properties. He contended that the property covered by this agreement for sale is to be excluded from his holding as he had already parted with possession of the property in favour of the person who executed this agreement. His plea was rejected by the court and it was held that a conjoint reading of Sections 5 (1), 3 (17), and 3 (9), clearly indicated that if a person holds the land as Bhumidhar, Sirdar or Asami amongst others, then such land will be liable to be included in computing the ceiling area of his holding under Section 5 (1).
The Supreme Court observed in Paragraph-7 as follows:-
"Section 5 sub-section (1) of the Act provides that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. The definition of the term "tenure-holder" as found in Section 3 sub-section (17) lays down that a "tenure-holder" means a person who is the holder of a holding. ''Holding' is defined by Section 3 sub-section (9) to mean the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. A conjoint reading of Sections 5 (1), 3(17) and 3(9) clearly indicates that if a person holds the land as bhumidhar, sirdar or asami, amongst others, as laid down by the said provision then such land will be liable to be included for computing ceiling of his holding under Section 5 (1). It is difficult to appreciate how the term "holding held by a tenure-holder" should be confined only to such lands which are possessed by him as owner and would exclude such lands which are owned by him but which are not in his physical possession. Section 5(1) nowhere contemplates that the lands must also be physically possessed by him before he could be said to have held such lands even though he was the full owner thereof."
31. In the instant case the petitioner got the right to possession by virtue of succession to the six plots of land in village Magrapur on death of his father in September 1979 only. However, in the extract of Khatauni considered by the Prescribed Authority of the year is 1407 to 1412 Fasli, the term of cultivatory possession was mentioned as since before 1373 Fasli.
32. Moreover, the Appellate Authority rightly interpreted section 29 of the Act and came to a conclusion that determination of ceiling area is to be done with reference to the date the petitioner was recorded as tenure holder i.e. with effect from September 1979 and not with reference to 08.06.1973, the date of the enforcement of the Amendment Act.
33. The language of Section 5 (1) "on and from the date of commencement" of the amendment act i.e. 08.06.1973, ceiling area has to be determined taking into account all the lands held by such a person throughout the State, in any capacity, whatsoever. The date of 08.06.1973 is relevant date only for the purpose of defining "ceiling area", it is not relevant for the purpose of determining the area of the holding of a tenure holder. If the petitioner's argument is to be believed it would mean that only if a person has land in excess of "ceiling area" on 08.06.1973 then alone he shall come under the clutches of the Act. This would do violence to the very language of the Act, and the purpose for which it was enacted. The language of Section 5 (1) of the Act starts with the phrase "on and from" Commencement of the Act.
34. The date of commencement of the Amendment Act is 8th June 1973, hence, the computation of a holding of a tenure holder would depend on either the date of commencement of the Act, or from the commencement of the Act to any other point of time in the future. The operation of the Act is a continuing process. It does not stop merely on the date of 8th June 1973, when the Amendment Act came into operation but from the date of such commencement the determination of surplus land will be done as and when a tenure holder comes into possession and holds land the aggregate of which is more than the ceiling area permissible under the Act.
35. It is clear from the Long Title and Preamble of the Act that the object of the act is to impose ceiling on land holdings in Uttar Pradesh. The Act does not take away any rights of the tenure holder but only restricts the area he can hold to allow for a more equitable distribution of a scarce resource among the States' entire population in the interest of the community, to ensure increased agricultural production and to provide land for landless agricultural labourers and for other public purposes as best to subserve the common good. The argument of the learned counsel for the petitioner that since he did not hold surplus land on the date of commencement of the Amendment Act, any land which came into his possession by succession thereafter should be ignored, is rejected as misconceived.
36. The next contention of the learned counsel for the petitioner is that under section Under section 3 (7) the definition of family has been given and in relation to a tenure holder it means himself or herself and the spouse, other than a judicially separated spouse, minor son and minor daughters, other than married daughters. Under Sub-section (3) of Section 5 for Computation of Ceiling Area in case of a tenure holder the number of family members has to be done taking into account. In case the family members are not more than five, only 7.30 hectares of irrigated land is permissible. However, if the family members are more than five, then 2 additional hectares of land is admissible subject to a maximum of 6 hectares of such additional land.
37. For each adult son the tenure holder is entitled to 2 hectares of additional land, subject to a maximum of 4 hectares of additional land. Provided that such adult sons are not independent tenure holders in their own right having more than 2 hectares of irrigated land in their possession.
38. A careful perusal of the aforesaid provision clearly shows that if the member in the family exceeds five, the tenure holder is entitled for additional land provided that none of such member is a tenure holder in his/her own right. Similarly, it also provides that even if there are no adult sons, but if the strength of the members of the family is more than five, then the tenure holder is entitled to additional land of 2 hectares for each member of the family subject to a maximum of 6 hectares of additional land. It is not in dispute in the present case that the strength of family members of the petitioner was Eight at the time when notice was issued to him on 02.11.2000. The petitioner brought on record the High School pass Certificates of his three daughters and three sons. However, the Prescribed Authority and the Appellate Authority refused to grant benefit of additional land for each member of the family in addition to the five members as the petitioner did not produce relevant extract of the Family Register and on 08.06.1973 none of the petitioner's children was born. The logic applied by the Prescribed Authority and the Appellate Authority is incomprehensible. According to the respondents, the date of determination of family members has been taken as 8th June 1973, but the date of determination of ceiling area has been taken as the date when the Prescribed Authority was deciding the case.
39. In my considered opinion even though the petitioner's family consisted of only two members i.e. himself and his wife on 8th June 1973, at the time of issuance of notice under Section 9, on 02.11.2000, all of his six children had been born. Three of his daughters were married but there were at least three sons who were living with him. None of them has been shown to be an independent tenure holder having more than 2 hectares of land by the State respondents, in their Counter affidavit. For the purpose of determination of ceiling area the petitioner was entitled to 2 additional hectares for at least one of his sons namely Shyam Srivastava who was major at the time.
40. Though this Court is not convinced with the argument of the learned counsel for the petitioner regarding the applicability of the cut-off date of 08.06.1973 for determining ceiling area on the basis of Section 29 of the Act and holds that the petitioner was independent tenure holder of eight plots of land ad-measuring 8.546 hectares in villages Magrapur and Baddupur in Tehsil Shahbad District Hardoi which in irrigated terms came out to be 7.968 hectares; the failure of the learned Court below to take into account the number of members of the petitioner's family while determining the permissible limit of land to be left with the petitioner cannot be countenanced.
41. The Writ Petition is allowed. The orders of the Respondent nos.2 & 3 are set aside as they failed to take into account the petitioner right to additional land under Section 5(3) b of the Act. The petitioner shall be entitled to all of his land in the eight plots mentioned in CLH 3 in the two villages concerned.
Order date :-19th May, 2020 PAL (Justice Sangeeta Chandra )